What Happens If I Die Without a Will?

Texas Probate Code § 38 and §45 provide default rules for person who dies without a Will (known as “intestacy”) in order to determine how the person’s property will be distributed.  The default rules are determined based upon marital relationships and family relationships. 

 A summary of the default rules are summarized as follows:

 MARRIED PERSON WITH CHILDREN

• Separate Property
  • Personal Property
    • Children take 2/3 Equally
    • Surviving Spouse takes 1/3
  • Real Property
    • Children take Equally subject to Life Estate
    • Surviving Spouse takes Life Estate of 1/3
• Community Property (If no children or descendants OR if all surviving children and descendants of decedent are also children or descendants of surviving spouse)
  • Personal Property
    • All to Surviving Spouse
  • Real Property
    • All to Surviving Spouse
• Community Property (If there are surviving children and descendants of decedent that are not the children or descendants of surviving spouse)
  • Personal Property
    • Children take Decedent’s 1/2 Interest Equally
    • Spouse Retains His/Her 1/2 Interest
  • Real Property
    • Children take Decedent’s 1/2 Interest Equally
    • Spouse Retains His/Her 1/2 Interest

MARRIED PERSON WITH NO CHILDREN

• Community Property
  • Personal Property
    • All to Surviving Spouse
  • Real Property
    • All to Surviving Spouse
• Separate Property
  • Personal Property
    • All to Surviving Spouse
  • Real Property –  Both Parents Survive – Siblings Survive
    • Mother takes 1/4
    • Father takes 1/4
    • Surviving Spouse takes 1/2
  • Real Property – One Parent Predeceases – Siblings Survive
    • Parent takes 1/4
    • Siblings or their Descendants take 1/4
    • Surviving Spouse takes 1/2
  • Real Property – One Parent Predeceases – No Siblings Survive
    • Parent takes 1/2
    • Surviving Spouse takes 1/2
  • Real Property – Both Parents Predecease – Siblings Survive
    • Siblings or their Descendants take 1/2
    • Surviving Spouse takes 1/2
  • Real Property – Both Parents Predecease – Bo Siblings or Siblings’ Descendants Survive
    • All to Surviving Spouse

UNMARRIED PERSON

• Options
  • 1.  The Decedent’s Children and their Descendants
  • 2.  If There are no Children or their Descendants, then to His/Her Father and Mother in equal portions (1/2 each).  If only the Father or Mother Survive, then His/Her Estate shall be Divided into Two Equal Portions, One to Parent Surviving and One to Brothers and Sisters of the Deceased and to their Descendants.  If There are no Children or Descendants, Then the Whole Estate Shall be Inherited by the Surviving Father or Mother.
  • 3.  If There is no Surviving Father and Mother, Then the Whole Estate Shall Pass to the Brothers and Sisters and Their Descendants of the Deceased.
  • 4.  If There are None of Above Kindred, Then the Inheritance Shall be Divided Into Two Moieties, One going to the Paternal Kindred and One going to the Maternal Kindred.  The Estate Shall go to Descendants, without end, Until Passing to the Nearest Lineal Ancestors and Their Descendants.